16. General Provisions.
16.1 Governing Law; Venue. This Agreement shall be governed by New York law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Platform shall be subject to the exclusive jurisdiction of the state and federal courts located in New York.
16.2 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
16.3 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (a) each party represents that it is not named on any United States government list of persons or entities prohibited from receiving exports, and (b) Subscriber shall not permit Users to access or use the Platform in violation of any United States export embargo, prohibition or restriction.
16.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
16.5 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
16.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
16.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
16.8 Attorney Fees. Subscriber shall pay on demand all of LikeReferrals’s reasonable attorney fees and other costs incurred by LikeReferrals to collect any Fees or charges due LikeReferrals under this Agreement.
16.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
16.10 Entire Agreement. This Agreement, including all Subscription Specific Terms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or attachment hereto, the terms of this Agreement shall prevail.
16.11 Survival. Rights and obligations under this Agreement which by their nature should survive, including, but not limited to any and all payment obligations invoiced prior to the termination or expiration hereof, will remain in effect after termination or expiration hereof.
16.12 Amendment. This Agreement will not be changed, modified, or amended except by a writing executed by both parties or if Subscriber electronically accepts a subsequent agreement or amendment delivered by LikeReferrals via the Platform.
16.13 Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions
17. Service-Specific Terms.
17.1 Promotional Offerings. These Service-Specific Terms apply to any use of the Services any Subscriber on a promotional basis.
17.1.1 Promotional Catalog. When Subscriber uses the Platform on a promotional basis, LikeReferrals may provide Subscriber with a promotional products catalog. LikeReferrals reserves all rights therein, and Subscriber acknowledges and agrees that LikeReferrals shall not be responsible for the accuracy of any information posted therein. LikeReferrals cannot guarantee specific pricing, product descriptions, or availability, as these factors are controlled in part by suppliers and other parties. LikeReferrals shall, in its sole discretion, determine the method, details, and means of developing, altering, or enhancing any such promotional catalog.
17.1.2 Termination and Liability. LikeReferrals reserves the right to terminate any promotional offering by providing written notice to Subscriber. The protections afforded by Section 11.1 shall not apply to any promotional subscription.
17.2 LikeReferrals Core. If and for so long as Subscriber has an active subscription to LikeReferrals’s Core Service, the following terms shall form part of the Agreement:
17.2.1 Additional Subscriber Responsibilities. In the event that any individual requests information about how LikeReferrals acquired his or her information (an “Inquiring Party”), LikeReferrals shall be entitled to disclose to the Inquiring Party (a) that LikeReferrals used his or her consumer information in conjunction with and as part of the provision of Services to Subscriber, (b) the source of the Inquiring Party’s information maintained by LikeReferrals, and (c) if the Inquiring Party’s information was provided to LikeReferrals in Subscriber Data, the name and contact information of Subscriber so the Inquiring Party may contact Subscriber directly.
17.2.2 Additional Intellectual Property Acknowledgements. All Content and materials included as part of the LikeReferrals Core service, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Works”) are the property of LikeReferrals and are protected by copyrights, trademarks, trade secrets, or other proprietary rights, and these rights are valid and protected in all forms, media, and technologies existing now or hereinafter developed. All Works are copyrighted as individual works and as a collective work under the United States copyright laws and international treaty provisions, and LikeReferrals owns a copyright in the selection, coordination, arrangement and enhancement thereof. Subscriber may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as expressly contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Works is strictly prohibited. Subscriber understands and acknowledges that unauthorized disclosure, use or copying of the Works may cause LikeReferrals and its licensors irreparable injury, which may not be remedied at law, and agrees that LikeReferrals’s and its licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief
17.2.3 Links to External Sites. The Site(s) and the Platform may contain links to other web sites. LikeReferrals is not responsible for the availability of these external sites nor does it endorse the activities or services provided by these websites. Under no circumstances will LikeReferrals be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to a user in connection with the use of or reliance on any content, goods, or services available on such external websites.
17.5 Social Ads. If and for so long as Subscriber has an active Social Ads subscription, the following terms shall form part of the Agreement with respect thereto:
17.5.1 Provision of Social Media Advertising Products. LikeReferrals’s licensor (“Social Ad Partner”) will provide Subscriber with access to certain products and services for advertising on third-party social media platforms (including Facebook and Instagram) pursuant to the Social Ads subscription (the “Social Ad Products”). In connection with the Social Ad Products, Subscriber will be solely responsible for creating and/or managing Subscriber’s social media platform accounts. Subscriber shall not take any actions or instruct LikeReferrals or the Social Ad Partner to undertake any actions that violate applicable law or the applicable social media platform policies, including without limitation Facebook’s discriminatory advertising policies, the current version of which is available here: https://www.facebook.com/policies/ads/prohibited_content/discriminatory_practices.
17.5.2 License for Social Media Campaigns. Subscriber hereby grants LikeReferrals and the Social Ad Partner a non-exclusive, irrevocable, worldwide, transferable, royalty-free, sublicensable (through multiple tiers of sublicenses) right and license to register or establish accounts and publish campaigns using the Subscriber Data and Subscriber Content with the social media platforms.
17.5.3 Intellectual Property Ownership. Any intellectual property developed by LikeReferrals or the Social Ad Partner in connection with providing the Social Ad Products that is not Subscriber Content is owned by LikeReferrals or the Social Ad Partner, as applicable.
18. Additional Terms for Mobile Applications.
18.1 Mobile Applications. LikeReferrals may make available software to access the Service via a mobile device (“Mobile Applications”). To use any Mobile Applications Subscriber must have a mobile device that is compatible with the Mobile Applications. LikeReferrals does not warrant that the Mobile Applications will be compatible with Subscriber’s mobile device. Subscriber may use mobile data in connection with the Mobile Applications and may incur additional charges from its wireless provider for these services. Subscriber agree that it is solely responsible for any such charges. LikeReferrals hereby grants Subscriber a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on one mobile device owned or leased solely by Subscriber, for Subscriber’s personal use. Subscriber may not: (a) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law, (b) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party, (c) make any copies of the Mobile Applications, (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications, or (e) delete the copyright and other proprietary rights notices on the Mobile Applications. Subscriber acknowledges that LikeReferrals may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that Subscriber is using on its mobile device. Subscriber consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and LikeReferrals or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by Subscriber to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. LikeReferrals reserves all rights not expressly granted under this Agreement. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the United States Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Mobile Applications originates in the United States, and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. Subscriber agrees to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.
18.2 Mobile Applications from Apple App Store. The following applies to any Mobile Applications Subscriber acquires from the Apple App Store (“Apple-Sourced Software”): Subscriber acknowledges and agrees that this Agreement is solely between Subscriber and LikeReferrals, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Subscriber’s use of the Apple-Sourced Software must comply with the App Store Terms of Service. Subscriber acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, Subscriber may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to Subscriber; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to LikeReferrals as provider of the software. Subscriber acknowledges that Apple is not responsible for addressing any claims of Subscriber or any third party relating to the Apple-Sourced Software or Subscriber’s possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims, (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to LikeReferrals as provider of the software. Subscriber acknowledges that, in the event of any third-party claim that the Apple-Sourced Software or Subscriber’s possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, LikeReferrals, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. Subscriber and LikeReferrals acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to Subscriber’s license of the Apple-Sourced Software, and that, upon Subscriber’s acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to Subscriber’s license of the Apple-Sourced Software against Subscriber as a third-party beneficiary thereof.
18.3 Mobile Applications from Google Play Store. The following applies to any Mobile Applications Subscriber acquires from the Google Play Store (“Google-Sourced Software”): (a) Subscriber acknowledge that this Agreement are between Subscriber and LikeReferrals only, and not with Google, Inc. (“Google”), (b) Subscriber’s use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service, (c) Google is only a provider of the Google Play Store where Subscriber obtained the Google-Sourced Software, (d) LikeReferrals, and not Google, is solely responsible for its Google-Sourced Software, (e) Google has no obligation or liability to Subscriber with respect to Google-Sourced Software or this Agreement, and (f) Subscriber acknowledges and agrees that Google is a third-party beneficiary to this Agreement as it relates to LikeReferrals’s Google-Sourced Software.